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A federal court ruling may lend more dignity to the idea of rough and tumble political debate in judicial elections. The ruling stems from a 1998 case filed by George M. Weaver, who unsuccessfully attempted to unseat Georgia Supreme Court Justice Leah J. Sears in a hotly contested judicial race two years ago. Weaver alleged that the Judicial Qualifications Commission’s public reprimand of him and its claim that he ran false and misleading campaign ads violated his right to free speech, and may have cost him the election. The JQC reprimanded Weaver, citing Canon 7 of the Georgia Code of Judicial Conduct, adopted by the State Supreme Court. The JQC is authorized to enforce the code. Now, with the case over, both Weaver and the JQC claim victory. Both won some issues and lost others on summary judgment. The court did not address whether Weaver’s contested statements were actually false. The order by U.S. District Judge Willis B. Hunt Jr. declares unconstitutional part of Canon 7 that prohibits candidates from knowingly or negligently making false statements. It leaves intact, however, a different rule that authorizes the JQC to rebuke publicly or privately candidates who break Canon 7. The JQC monitors the ethical behavior of Georgia judges and judicial candidates and enforces some laws that govern them. Hunt’s ruling also leaves intact other parts of Canon 7 that were not challenged. Among them is the portion that places greater restrictions on the speech of judicial candidates than the speech of candidates for other offices. This means that judicial candidates still are prohibited from discussing or offering opinions on issues — for example, abortion — which may come before them on the bench, according to the JQC’s attorney, James C. Rawls, a partner at Atlanta-based Powell, Goldstein, Frazier & Murphy. JQC POWERS IN LIMBO The immediate effect of the ruling leaves the JQC in limbo. Hunt didn’t enjoin the JQC from using Canon 7(B)(1)(d); he just declared part of it unconstitutional. So for now, the JQC could attempt to enforce the unconstitutional portion of the rule but would have a hard time doing so. It’s likely the JQC will re-examine this part of Canon 7 and discuss whether it should be narrowed or rewritten, says Rawls. The JQC is not authorized to change the rule. That’s in the purview of the Georgia Supreme Court. Until a rule change occurs, candidates may make negligently false statements without much fear of the JQC responding, says Charles A. Marvin, a professor at Georgia State University’s law school who teaches constitutional and media law. Libel and slander laws still might apply, he adds. “Running for judge would be like running for any other legislative or executive branch office,” he says. Mark Rountree, Weaver’s campaign consultant, says the ruling “takes away the teeth of the JQC. It should have a big impact on future judicial races.” With its ability to punish people under Canon 7(B)(1)(d) stripped away, for now anyway, the JQC has “the power basically of a newspaper editorial,” he says. “They’re just one more group with something to say, as opposed to a group that supposedly has the ability to tell candidates what they can and can’t say. They don’t have the power any more to have the power of state government come down and destroy your livelihood if you’re an attorney.” MORE ‘FREE-FOR-ALLS?’ Charles C. “Chuck” Clay, chairman of the state Republican Party and a partner at Brock, Clay, Calhoun, Wilson & Rogers in Marietta, Ga., says, “I would expect that you’d see more free-for-alls and tougher races in judicial elections, but that’s not all bad.” David Worley, chairman of the state Democratic Party and an attorney with Jacobs & Swarsky, predicts judicial candidates will be less restrained in what they say about their opponents. According to Weaver, the court’s ruling will give candidates more leeway to interpret issues and accuse opposing candidates, and to talk about comparative judicial philosophies, such as the role of the courts. RULING RAISES ISSUES Marvin, the GSU law professor, says Hunt’s opinion is thoughtful, cautious, appropriate and raises interesting issues. First, he says, the case calls into question whether judicial elections are a good idea at all, particularly for high-level posts. It also raises the issue of whether it is appropriate for an official body — such as the JQC — to intervene in the fundamental campaign process. Essentially, he says, the JQC is intervening on behalf of one candidate and against another, attempting to influence voters’ selection of a candidate who may be acting in ways the JQC considers unseemly. The political process already is robust and unseemly, and applying stricter rules to judicial candidates than are applied to nonjudicial candidates may appear unfair to the public, he says. ROBUST ’98 RACE The campaign between Sears and Weaver that led to this case was certainly robust. It all started when Weaver, a principal with Atlanta-based Hollberg & Weaver, distributed a brochure characterizing Sears as a supporter of same-sex marriages. The brochure also said Sears denigrated traditional moral standards and had called the electric chair “silly.” The JQC asked Weaver, confidentially, to stop distributing the brochure. Weaver, attempting to comply with the JQC’s order, altered the brochure’s language and also ran a television ad using the new language. Six days before the election, the JQC publicly reprimanded Weaver, saying he circulated “false, misleading and deceptive” campaign ads. Weaver filed suit the next day, claiming, among other things, that his rights to free speech had been violated. Ultimately, Hunt agreed. His opinion says Canon 7(B)(1)(d) is unconstitutional on its face because it is too broad. It applies both to false statements knowingly made and to false statements negligently made. Weaver v. Bonner, No. 1:98-CV-2011-WBH (N.D. Ga. order Aug. 25, 2000). Hunt appears to define negligence by the portion of the canon that proscribes candidates from communicating in ways they “reasonably should know” are false or misleading. Knowingly false statements may be proscribed, Hunt wrote, but not negligent ones. “It chills debate by requiring candidates to attempt to determine whether a reasonable person would view their speech as fraudulent, misleading, or somehow deceptive. It therefore has great likelihood of forcing candidates to remain silent on questionable matters instead of risking adverse action. It violates the First Amendment.” PRESERVING JUDICIAL INTEGRITY Hunt also wrote that Georgia has a great enough interest in preserving the integrity and independence of the judiciary “so as to support some restrictions on judicial campaign speech that are greater than those imposed on other types of campaigns.” But, he added, the interest isn’t sufficient to allow Canon 7-type restrictions on core political speech. He compared Canon 7′s restrictions to those legally imposed on commercial speech, which has a lower level of constitutional protection. To survive an overbreadth challenge, Canon 7 needed to provide “breathing space,” because erroneous speech is inevitable in free debate, he wrote. Another rule that Weaver disputed, however, survived constitutional challenge. Weaver had contended JQC Rule 27 was unconstitutional because it allowed government intervention during campaigns. Rule 27 empowers the JQC to review candidates’ campaign speech, and determine whether it complies with Canon 7. If it doesn’t, the rule lets the JQC issue cease and desist requests. Hunt wrote that the government may participate in the marketplace of ideas and add its voice to political debate. He cited the Federal Trade Commission’s power to enjoin speech and declare advertisements false and misleading as examples of government entities’ constitutionally permissible power to correct false statements. The “constitutionally preferred” cure for false speech, he wrote, is more speech. Weaver also challenged Rule 27 on due process grounds, alleging it was unconstitutional because it did not provide a formal hearing before the JQC issued a public statement. Due process is flexible and calls for protections as the situation demands, Hunt wrote. Because of time pressures inherent in campaigns, Rule 27′s lack of a formal hearing process isn’t fatal to its constitutionality, Hunt wrote. BOTH SIDES CLAIM VICTORY Both the JQC and Weaver claimed victory in the case. Weaver says he’s pleased that the portion of Canon 7 he objected to has been declared unconstitutional. He says that because Rule 27 is simply an enforcement mechanism for Canon 7, its constitutional survival does not detract from his victory. With part of Canon 7 gone, Weaver says he’s protected from any discipline the State Bar might have meted out. As a candidate — not as a judge — the State Bar, rather than the JQC, would have had disciplinary authority over him. Rawls says his clients are very pleased with the ruling, especially the preservation of Rule 27. He also notes that when the JQC reprimanded Weaver, it did so under an analysis that looked at knowing and reckless false statements, not at negligent ones. The court indicated that knowing and reckless false statements could be constitutionally prohibited under a canon that was drafted narrowly enough, he says, so the JQC was acting within bounds ultimately deemed constitutional.

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